Friday, March 15, 2013

That Pesky ICC Matter

Logo of the ICC

I was a professor at the American University in Cairo during the year of Revolution (2011). I loved all my students, and I have taught a leadership class there every summer since. But one thing I noticed is that Egyptians do not know how to have a conversation. I love you guys, but every small dispute becomes a shouting match. Parliament is dismissed, and Tahrir has become the parliament of the streets. One thing I love about Kenyans is how calm they are. Perhaps it is innate, and perhaps it is the British influence, but Kenyans are generally a reserved and controlled people.

One of the issues that is really raising temperatures in the post-election environment is the debate about the Hague.

One of my good, helpful ICT colleagues whom I respect enormously said to me

"the fact that the new President is in the Hague should be the main
focus of ALL press coverage!"

TNA Campaign Poster in Kikuyu (photo credit the author)

And my beloved GA wrote (I requested her views on this matter) states

"I think it's ridiculous that the main political figures have charges as severe as "crimes against humanity." During the second debate [the candidates] spent quite a bit of time talking about everyone's numerous acts of corruption and it was quite frustrating to see everyone complacent. "Eh, it wasn't as bad as it sounds, or that was the other prime ministers."[  .. . ]  Not to say that politics/ politicians aren't similar everywhere, but it seemed so blatant. I chew on how severe the phrase sounds (and in reality should be: the charge is): crimes against humanity. It seems like something out of a science fiction novel. So yes, the fact that people were worried of whether or not Ruto and Kenyatta would be "distracted" by the court hearings and whether they could run the administration from Skype is a slap in the face to how serious these charges are, or should be. If Odinga should have been charged too, then yes, it's ridiculous that he was running [ . . . ] I saw articles talking about how citizens had amnesia. Apparently!"

Then Gathara reminds us of this point. Gathara's World

We had already normalized the abnormal, making it seem perfectly acceptable to have two ICC-indicted politicians on the ballot. At the first presidential debate, moderator Linus Kaikai had been more concerned with how Uhuru Kenyatta would “govern if elected president and at the same time attend trial as a crimes against humanity subject” and not whether he should be running at all. Any suggestion of consequences for Uhuru’s and William Ruto’s candidature had been rebuffed with allegations of neo-colonialism, interference and an implied racism. People who had spent their adult lives fighting for Kenyans’ justice and human rights were vilified as stooges for the imperialistic West for suggesting that the duo should first clear their names before running for the highest office in the land.

Uhuruto Poster in English (photo credit the author)

So my question to the audience is, given that the Kenyan people elected two persons who have been indicted by the ICC, how do we move forward? Kenyans have spoken. Even if the court decides that there were serious election violations, and that a runoff is needed, Kenyatta won by a large margin. Kenyans may be wrong, but this is what they decided. Now what?

The last line of a recent Jeffrey Gettleman piece in the New York Times caught my attention.

Now that the two have won, many supporters wonder why the International Criminal Court cases are even necessary. 

“If Uhuru and Ruto have succeeded in reconciling warring communities, isn’t that the point?” asked Edward Kirathe, a real estate developer. “What other interest does the I.C.C. have?”



  1. On behalf of Dan Epstein

    So I've been wondering this, too--what does Kenya, as a state, say to the ICC? Or indeed, does it have to say anything? I mean, maybe the election wasn't clean, but indeed, if the Kenyan establishment accepts him as as the elected president (unlike Alberto Fujimori after the 2000 presidential elections in Peru, or Robert Mugabe after the 2008 elections in Zimbabwe, or even Felipe Calderón after the 2006 elections in Mexico), then what can the international community _do_ about it?

    The answer to this is that they can do _something_ (verbal warnings, diplomatic signals like withdrawal of ambassadors, sanctions, to begin from the mild end of the spectrum), but _only_ if the states that make up the international community care more about human rights and the severity of Kenyatta's alleged crimes than they do about the fallout that would come from worsened relations with Kenya if they try to put pressure on the country.

    In all likelihood, though, they won't care more about human rights and justice--they pretty much never do. What this means to me is that the ICC, whose practical legitimacy is already about as well-founded as a castle made of balsa wood, is going to look silly and toothless (or should I say sillier, and more toothless), just as the vast majority of the world's non-economic intergovernmental institutions have been made to look time after time by both big and small states that see "ideals" as something not worth their weight in access to markets, natural resources, or partnerships in security concerns.

    So the ICC is not a place to powerful people (that is, powerful on the international scale) accountable. It can be used against non-state actors who are unprotected by any states, or it can be used against officials or clients of _total_ pariah states, as long as they are also weak (Serbia, for example; but not places like North Korea that have a strong friend, or like Iran that have natural resources). So, the ICC can only be used to punish people who are not protected by the security and economic interests of the powerful & rich in the world.

    This, indeed, makes it look like the ICC _is_ pretty neo-colonial. This is because it will only really prosecute Kenyatta to the fullest extent of the law if the world's powerful & rich (people/states/corporations, etc) _want_ him to be punished. If someone with influence on the Hague wants him protected--wants relations with Kenya unruffled (and you can bet there powerful entities within a few hundred miles of the Hague who want just that), then the Hague will give him an easy way out.

    So unfortunately, it looks to me like the ICC, as honorable as its intentions and principles, cannot, in the end, be anything _but_ an agent of neocolonialism. To wit, Milosevic & Karadzic of Serbia faced its justice, but anybody with connections--and you don't have to look much further, I'm sure, than the western borders of Kenya to find some people who chose the carrot of neocolonial connections--can simply avoid the stick of the ICC, with little or no poor consequences.

    What does this mean? The human rights of Kenyans are only in the hands of Kenyans. The ICC, just like every other intergovernmental organization, will only step in if and when the currents of power among states (and, in all honesty, corporations) align with ICC indictments. As a result, none of them can be depended upon to truly uphold human rights in any systematic way. Justice can only come from processes that turn upon levers of power _within_ Kenya.

  2. Kenyans are not usually calm when it comes to political matters. They actually take very emotive stances, and its not possible to persuade anybody to change his stance. The reason the elections were peaceful was because someone decided too run peace, reconciliation and tolerance messages in the mass media, running for a year, to the point that Kenyans became sedated. But emotions are still very high.

    Running against an incumbent in non-mature democracies is hard, because the playing field is not even. It is very possible that the winners stuffed their ballot boxes to the tune of 1.7Million votes. This will be proved in the few weeks. I think President Kibaki was shielding his boys from trouble since his actions of 2007 are the ones that took them to Hague in the first place. How is Uhuru an incumbent? He has direct support of the president with all state machinery at his disposal. Kibaki could not declare his preferred successor in public so that he can be protected in the aftermath of the elections.

    Now the next battle front is the Judiciary. Will it pass the integrity test that IEBC clearly failed?